Racing's image suffers as cobalt cases drag on

In the racing and disciplinary appeals (RAD) board on Monday the second set of cobalt charges in Victoria begin. Trainers Danny O'Brien, Mark Kavanagh and Flemington vet Tom Brennan face multiple charges over elevated cobalt levels from their horses.

These horses returned elevated levels in the spring of 2014 and whatever the outcome there is talk that any guilty finding will result in an appeal to the Victorian Civil and Administrative Appeals Tribunal (VCAT). This has already occurred with Lee and Shannon Hope last week and Mark Riley earlier this year.

These three trainers (the Hopes and Riley) have been allowed to continue training pending the appeal process despite being found guilty by the RAD board of the serious charge of administering a drug to affect the performance of a horse in a race.

The most serious charge – doping – rightly carries a three-year mandatory disqualification. To date, there have not been any consequences to the guilty verdicts given to these trainers by the RAD board.

Are we seeing the impact of a complicated legal framework and appeal process where long delays are commonplace? In the end this means that Racing Victoria (RV) becomes impotent in dealing with those found by RAD to have doped.

The RAD board was established by former Labor racing minister Rob Hulls with co-operation from the then chairman of Racing Victoria Michael Duffy, himself a former Labor minister and attorney-general.

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There is little doubt the board is a brilliant set-up that has created an air of judicial independence when dealing with racing integrity matters. The governance has been taken from the stewards and the race club committees and given to the independent tribunal.

The RAD board is chaired by a retired county court judge, Russell Lewis, who is ably assisted by senior eminent legal figures. Importantly, the chairman and the board members understand racing, their familiarity and knowledge of the sport has enabled them to work through the labyrinth of information that accompanies jockeys not riding properly, wagering and horse drug and doping charges.

A system that would seem perfect when dealing with the nuances with horseracing – eminent legal minds entwined with a judicial background and an intimate understanding of the sport of kings.

At the RAD board hearings, RV stewards and their lawyers present the prosecution case and the trainers or jockeys with their lawyers present the defence. However, perched above the RAD board is an appeal framework that begins with VCAT and can go to higher courts.

This system means delays and "stays" are commonplace and cases drag on indefinitely with seemingly no impost for those found guilty at the RAD board.

Furthermore, the knowledge and understanding of racing is often lost, and replaced by someone experienced in planning regulations and permits. Then racing cases run the risk of falling into the legal system where decisions are made on fine legal detail or technicalities with no reference to the racing industry.

This system has cost Victorian racing significantly; one can only ponder the financial burden to RV running these cases through the courts. There is also the damage done to the image of racing where guilty trainers are allowed to continue to compete against innocent parties.

In Racing NSW the system is different – the stewards are judge, jury and executioner – but there is an appeals process to the courts above the stewards.

In the cobalt cases that have plagued Victoria and NSW racing, the chasm between RNSW and RV is as deep as the Krubera​ Cave in the Black Sea.

Last Thursday, RNSW handed down its final penalty and closed the book on the cobalt positive in the Sam Kavanagh-trained Midsummer Sun. This horse tested positive to cobalt in February this year, months after the Victorian cobalt positives.

Soon after the cobalt positive was confirmed in Kavanagh's horse, RNSW stewards revoked Sam Kavanagh's training licence, as in their words "his continued participation was seen as prejudicial to the interest and integrity of racing in NSW".

Yet in Victoria our cobalt cases continue to drag on appeals to VCAT and higher courts are flagged and the image and integrity of racing in this state suffers – leaving many to wonder where is the justice?